Phoenix Light & Fuel Co. v. Bennett

• Decision Date: 31 October 1903
• Docket Number: Civil 812
• Citation: 74 P. 48,8 Ariz. 314
• Parties: PHOENIX LIGHT AND FUEL COMPANY, Defendant and Appellant, v. THOMAS D. BENNETT, Plaintiff and Appellee
• Court: Arizona Supreme Court

74 P. 48

8 Ariz. 314

PHOENIX LIGHT AND FUEL COMPANY, Defendant and Appellant, v. THOMAS D. BENNETT, Plaintiff and Appellee

Civil No. 812

Supreme Court of Arizona

October 31, 1903

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Reversed.

The facts are stated in the opinion.

Chalmers & Wilkinson, and Herndon & Norris, for Appellant.

Defendant's motions to instruct the jury to bring in a verdict for defendant under the evidence should have been granted by the court. When there is no evidence in the case to support the plaintiff's theory, the rule of law is that the jury should be so instructed, and judges are no longer required to submit a question to a jury merely because some evidence has been introduced by the plaintiff, unless the evidence be of such a character that it would warrant the jury in finding a verdict for the plaintiff. Schuylkill and D. Improvement etc. Co. v. Munson, 14 Wall. 442, 20 L.Ed. 867; Root v Fay, 5 Ariz. 19, 43 P. 527.

Where the verdict of a jury is palpably against the evidence, it is proper to invoke this rule. Slate Creek Iron Co. v Hall, 11 Ky. Law Rep. 456, 12 S.W. 580.

There can be no doubt in regard to the rule that where damages are attempted to be recovered for an injury, the damages must result as the natural and proximate consequence of the wrongful act; and we admit the rule of law that one shall be held liable for those consequences which might have been expected as the natural result of his conduct, but not for those he could not have foreseen, and was therefore under no obligation to take into consideration.

The supreme court of the United States in Insurance Co. v Tweed, 7 Wall. 44, 19 L.Ed. 65, said: "One of the most valuable criteria furnished us by the authorities is, to ascertain whether any new cause intervened between the effect accomplished and the alleged cause. If a new force or power has intervened by itself sufficient to stand as the cause of the mischief, the other must be considered as too remote."

The same doctrine is announced in Fent v. Toledo etc. Ry. Co., 59 Ill. 349, 14 Am. Rep. 13; Toledo etc. Ry. Co. v. Muthersbaugh, 71 Ill. 572; Schmidt v. Mitchell, 84 Ill. 109, 25 Am. Rep. 446; Scheffer v. Railroad Co., 105 U.S. 249, 26 L.Ed. 1070; Haile's Curator v. Texas and Pacific Ry. Co., 60 F. 557, 9 C.C.A. 134, 23 L.R.A. 774; Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89; Bosch v. Burlington etc. R.R. Co., 44 Iowa 402, 24 Am. Rep. 754.

"The law is not so absurd as to assume to hold any one responsible upon the ground of negligence for not doing that which he was practically under the circumstances unable to do." Michigan Cent. R.R. Co. v. Burrows, 33 Mich. 6.

In determining what is the proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence. There was no proof, nor any attempt to prove, that lightning was any more apt to enter the wires of the defendant without the clay bushing or rubber tubing than with it. See Seale v. Gulf etc. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602; Brandon v. Gulf City etc. Co., 51 Tex. 121.

Defendant's contention was that it could only be held liable for damages resulting from an injury caused by its negligence, and if the injury was caused by a current of electricity coming in contact with the plaintiff's house through defendant's wires, that said electricity must have come from defendant's plant.

The plaintiff contended that defendant was liable regardless of where the current of electricity came from.

The court instructed the jury upon these two contentions.

In our view of this case these contentions were irreconcilable, and the instructions given by the court at the request of the respective parties and of his own motion were conflicting and erroneous, and calculated to and did mislead the jury. Price v. Hannibal etc. Ry. Co., 77 Mo. 508; McLean County Bank v. Mitchell, 88 Ill. 52; Hoben v. Burlington etc. R.R. Co., 20 Iowa 566.

A. C. Baker, and Alfred Franklin, for Appellee.

The doctrine of "res ipsa loquitur" should be invoked in this case. On this proposition we cite the following cases as being strictly analogous to the one at bar in which this doctrine has been sustained. Aycock v. Raleigh etc. Ry. Co., 89 N.C. 321; Alton etc. Co. v. Foulds, 81 Ill.App. 332; Ray on Negligence of Imposed Duties, 145; Whittaker's Smith on Negligence, 422, 423; Haynes v. Raleigh Gas Co., 114 N.C. 203, 41 Am. St. Rep. 786, 19 S.E. 344, 26 L.R.A. 810.

A wire negligently allowed by an electric company to remain out of place, which, becoming electrified from the atmosphere, causes injury either to the person or property of another, imposes a liability upon the company for such damage. Paine v. Electric etc. Co., 64 A.D. 477, 72 N.Y.S. 279; Southwestern Tel. etc. Co. v. Robinson, 50 F. 810, 1 C.C.A. 684, 16 L.R.A. 545; Jackson v. Wisconsin Tel. Co., 88 Wis. 243, 60 N.W. 430, 26 L.R.A. 101.

"It is clear that the business of maintaining and operating a telephone line is one that requires special knowledge and skill in the construction, inspection and repair of the line and instruments, and in the use of known and approved devices, if any there be, to guard against harmful effects to persons or property from electricity which may be conducted over the line and into the instruments, and the defendant in engaging in the business and in contracting to place and maintain its instruments in connection with its wires for the use of its patrons in dwellings and other buildings, in the absence of stipulations to the contrary, is deemed to have undertaken to possess and exercise such knowledge and skill." Griffith v. New England Tel. etc. Co., 72 Vt. 441, 48 A. 643, 52 L.R.A. 919, citing Brown v. Edison etc. Illuminating Co., 90 Md. 400, 78 Am. St. Rep. 442, 45 A. 182, 46 L.R.A. 745; McKay v. Southern Bell Tel. Co., 111 Ala. 337, 56 Am. St. Rep. 59, 19 So. 695, 31 L.R.A. 589; Griffin v. United Electric Light Co., 164 Mass. 492, 49 Am. St. Rep. 477, 41 N.E. 675, 32 L.R.A. 400; Perham v. Portland etc. Elec. Co., 33 Or. 451, 72 Am. St. Rep. 730, 53 P. 14, 40 L.R.A. 799.

In the consideration of the motion to make definite, as well as the principal contention, -- to wit, as to whether the fire originated from electricity of appellant's power plant or from the atmosphere, -- it is suggested by appellee that this pleading falls within the familiar rule that a plaintiff is not bound to plead facts which are peculiarly within the knowledge of the defendant. Louisville etc. Ry. Co. v. Crunk, 119 Ind. 542, 12 Am. St. Rep. 443, 21 N.E. 31; Burnham v. Milwaukee, 69 Wis. 379, 34 N.W. 389; Louisville etc. Ry. Co. v. Jones, 83 Ala. 376, 3 So. 902.

OPINION

DAVIS, J.

-- This is an appeal by the defendant company from a judgment rendered against it in an action for damages for alleged negligence, which, it was claimed, resulted in the destruction of the plaintiff's property. The complaint upon which the action was founded, after stating the residence of the parties and the corporate character of the defendant, alleged, "that, at all the times hereinafter mentioned, defendant was engaged in the business of supplying electricity, by virtue of a public franchise, to its certain consumers and patrons in and near the city of Phoenix, and of wiring and equipping the houses and buildings of its said patrons and consumers for the purposes of lighting such houses with electricity; that on or about the first day of April, 1899, the defendant, in changing the wires in the house of plaintiff, on North Second Avenue, near the city of Phoenix, negligently, wrongfully, and willfully caused the wire conducting electricity from its plant to plaintiff's house to be placed through the window casement of plaintiff's said house, without insulating the same in any manner whatsoever; that wholly by reason of said negligent placing of said wires as aforesaid, and without any knowledge, consent, or fault of plaintiff, said wire became charged with electricity on or about the eighteenth day of July, 1899, and set fire to and wholly destroyed plaintiff's said house, and furniture and effects of plaintiff therein, being of the value of five thousand dollars, to plaintiff's damage in the sum of five thousand dollars; that, at all the times herein mentioned, plaintiff was a purchaser and consumer, for hire, of the electricity furnished by defendant." A motion to require the plaintiff to make his complaint more definite and certain, by stating how and whence "said wire became charged with electricity," was denied, and a demurrer to the sufficiency of the complaint was overruled. The further answer of the defendant was a general denial of the allegations of the complaint, and upon the issues thus made the case was tried before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for the sum of $3,404.50.

The evidence adduced on the trial showed the following facts That the house of plaintiff at Phoenix, Arizona, was occupied by himself and family as a residence. It was an ordinary story-and-a-half brick house, which he had built during the latter part of the year 1896. At the time the house was built, it had been wired for the purpose of electric lighting by persons not connected with the defendant. That the first attachment with the defendant's plant was made at the front of the house, the wires entering through an upper window. The wiring remained in that condition for about two years. In the spring of 1899 the defendant changed its pole line to the alley back of the house, and then the wires connecting the defendant's plant with the plaintiff's house were changed to the back part of the house. The...